The Applicant sought leave to amend its Statement of Defence and Counterclaim to include a claim for repudiation. The Respondent argued that the Applicant had made an irrevocable election to pursue specific performance or damages and could not now amend to add repudiation.

The Court first considered Rule 3.65, which gives the Court broad discretion to amend pleadings. Such broad discretion is subject to the Court’s duty not to cure non-compliance when to do so would result in irreparable harm to a party under Rule 1.5(4). The Court noted that its discretion to amend pleadings recognizes the importance of accurate pleadings. In determining that the threshold required to allow an amendment is very low, the Court referred to Balm v 3512061 Canada Ltd, 2003 ABCA 98 for the proposition that: “[an] amendment should be allowed, no matter how careless or late, unless there is prejudice to the other side”. The Court also referred to Oregon Jack Creek Indian Band v Canadian National Railway Co (Motion), [1990] 1 S.C.R. 117 for the principle that, absent prejudice, only a “clearly and obviously invalid” amendment should be rejected. The Court allowed the amendments, reasoning that they were not “clearly and obviously invalid”, since it could not be said for certain (with the incomplete evidence in front of the Court at that time) that the Applicant had made an irrevocable election to pursue specific performance and damages instead of repudiation.